Report No. 367 (2020) IACHR. Petition No. 1079-14 (Jamaica)

Year2020
Case TypeAdmissibility
Respondent StateJamaica
CourtInter-American Comission of Human Rights
Report No. 367/20
















REPORT No. 367/20

PETITION 1079-14

REPORT ON ADMISSIBILITY


KEVIN SMITH AND FAMILY

JAMAICA


OEA/Ser.L/V/II

Doc. 385

12 December 2020

Original: English



























Approved electronically by the Commission on December 12, 2020.






Cite as: IACHR, Report No. 367/20, Petition 1079-14. A.. K.S. and family. Jamaica. December 12, 2020.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioners:

The International Human Rights Center, L.L.S., and Jamaicans for Justice

:

K. S. and family

Respondent S.:

Jamaica1

Rights invoked:

Articles 4 (right to life), 5 (right to humane treatment), 8 (right to a fair trial), and 25 (right to judicial protection) of the American Convention on Human Rights2 in relation to its Articles 1(1) and 2

II. PROCEEDINGS BEFORE THE IACHR3

Filing of the petition:

J. 29, 2014

Additional information received at the stage of initial review:

A. 16, 2019

N. of the petition to the S.:

J. 3, 2019

S.’s first response:

M. 11, 2020

Additional observations from the petitioner:

J. 4, 2020

Additional observations from the S.:

September 8, 2020

III. COMPETENCE

Competence Ratione personae:

Yes

Competence Ratione loci:

Yes

Competence Ratione temporis:

Yes

Competence Ratione materiae:

Yes, American Convention (deposit of instrument of ratification made on August 7, 1978)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:

No

Rights declared admissible

Articles 4 (right to life), 5 (right to humane treatment), 8 (right to fair trial), and 25 (right to judicial protection) of the American Convention in relation to its Articles 1(1) and 2

Exhaustion of domestic remedies or applicability of an exception to the rule:

Yes; under the terms of section VI

Timeliness of the petition:

Yes; under the terms of section VI

V. ALLEGED FACTS

  1. This petition claims that K.S.(.hereafter “Mr. S. or “the alleged victim” was, without lawful justification, fatally shot by police officers in the parish of St. C., Jamaica on February 27, 2003. According to the petition, to date, the S. has failed to diligently investigate, prosecute, and punish the crime. The petition also alleges that this unlawful killing falls within a well-documented pattern of hundreds of fatal shootings carried out by security forces each year, which the S. rarely, if ever, adequately investigates or punishes.

  2. According to the petition, M.S. was the son of Albertha Shakespeare (hereafter “M.S.. By way of background, the petition alleges that at about 10:45 p.m. on February 27, 2003, Mr. S. borrowed his mother's Honda Accord motorcar to move some furniture to the neighborhood where he operated a small grocery store. The petition states that after lending the motorcar to Mr. S., M.S. realized she had left some personal belongings, including cash and a Nokia cell phone in the motorcar. A., she decided to call K. on the Nokia phone to see if she could retrieve the money. When she called, a male voice answered and said something to the effect of, "K. not here." She called back and heard a voice she thought belonged to K. say frantically, "Mother B," which was the nickname he used for her. According to the petition, shortly thereafter, eight people informed M.S. that the police had killed her son.


  1. U. hearing the news of M.S.’s death, the petition states that M.S. attended the Portmore Police Station (in St. C.) to make inquiries about the circumstances in which Mr. S. had died. The petition states that an officer named Mr. G. told M.S. that there had been a shootout between the police and a group of men that included M.S.. The petition further alleges that Mr. G. removed two guns from a drawer and told M.S. that, "These are the two guns that were on the scene." According to the petition, Mr. G. did not say that M.S. had been in possession of either gun. Further, the petition states that Mr. G. did not use gloves while handling the guns, which were not covered in plastic or any other protective material.


  1. According to the petitioners, other evidence contradicted the claim of the police. In this regard, the petitioners state that M.S.’s sister identified the body of M.S. and observed (a) bullet wounds to the head that appeared to have been inflicted at close range; and (b) several bullet wounds to the groin area. In addition, the petitioner claims that a witness told Ms. Shakespeare that when the police starting shooting, two men, including Mr. S., ran into his house. The witness further stated that when the police pursued the men into his house, brought them out, and then shot and killed both of them. G. the foregoing, the petitioners state that the M.S.’s family came to suspect that Mr. S. had not been killed in a shoot-out.

  2. Following the death of M.S., the petition states that an investigation was initiated by the Bureau of Special Investigations4 (“BSI”). According to the petitioners, the BSI, on M. 15, 2006, submitted the alleged victim's case to the Director of Public Prosecutions (DPP). The petitions adds that on A. 28, 2006, the DPP ruled that the matter should go to the C.'s Court (in St. C.) for an inquest to be conducted. On J. 19, 2007, the case was listed in the C.'s Court, but the petitioners allege that to date no inquest date has been scheduled. According to the petition: (a) Jamaicans for Justice asked the C.’s Court for a copy of M.S.’s file in September 2007; (b) in response, the C.'s Court directed them back to the Director of Public Prosecutions; and (c) from J. 2009 to August 2011, Jamaicans for Justice sent four unanswered requests (to the C.’s Court) for more information about Mr. S.'s case.

  3. The petitioners complain that the fatal shooting of the alleged victim, together with delays and deficiencies in the investigation and judicial processes are part of a widespread pattern of unlawful killings and impunity that has been documented by various international governmental and non-governmental actors, as well as the government of Jamaica itself. The petitioners contend that it is a well-documented fact that the Jamaican justice system is replete with numerous failings, particularly in cases of excessive force and extrajudicial killings by police officers; and that most notably, these include lack of effective, prompt, and thorough investigations.


  1. The petitioners argue that up to the filing of the petition 10 years had elapsed since the death of M.S., without any resolution by the Jamaican justice system. In this regard, the petitioners reiterate that the C.'s Court is yet to set an inquest date. In the circumstances, the petitioners the petitioners contend there has been an unwarranted delay that justifies an exception to requirement to exhaustion of domestic remedies, pursuant to Article 46(2)(c) of the American Convention. G. the foregoing, the petitioners also affirm that the due to the circumstances of this case, the petition is being presented within a reasonable period of time, pursuant to Article 32(2) of the Commission’s Rules of Procedure.


  1. The petitioners entirely reject the S.’s arguments. F., the petitioners assert that civil remedies(such as constitutional relief) are neither adequate nor effective remedies; and that the Commission has stated, time and time again, that criminal proceedings are the appropriate and effective remedies that need to be exhausted in cases where there has been a violation of the right to life. S., the petitioners argue that an application to the Supreme Court for an order to compel the C.’s Court to act is not an adequate remedy because it is a discretionary remedy, and because it shifts the burden of prosecuting the case from the S. to the petitioners. F., the petitioners reiterates that the petition falls under Article 46(2)(c) of the Convention, which provides an exception to the exhaustion of domestic remedies, where “there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.” In this respect, the petitioners insist that the facts demonstrate that there has been unwarranted delay.

  2. The S. submits that the petition is inadmissible for failure to exhaust domestic remedies to redress the alleged violations. In particular, the S. contends, firstly, that the Petitioner has not exhausted civil proceedings in Jamaica in the form of constitutional relief. In this regard, the S. contends that section 19(1) of the Constitution of Jamaica recognizes the rights of persons to approach the Supreme Court of Jamaica for redress for human rights violations; and that these include violations of the right to life, and the right not to be subjected to cruel and inhumane treatment. The S. further submits that civil proceedings can adequately address alleged human rights violations as: (1) it allows for the facts to be ventilated by assessing the S.’s responsibility for human rights violations; and (2) provides for compensation, which is an adequate...

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